Opinion
2003-1293 NC.
Decided June 4, 2004.
Appeal by defendant, as limited by his brief, from so much of an order of the District Court, Nassau County (F. Ricigliano, J.), entered July 11, 2003, as denied his motion to renew, granted his motion for reargument and, upon reargument, adhered to its prior order dated March 10, 2003 denying defendant's motion for summary judgment and granting plaintiff's cross motion for leave to file an amended complaint.
Order insofar as appealed from unanimously affirmed without costs.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
In this action for unpaid fees for legal services rendered from January 2002 to April 2002, plaintiff's complaint failed to allege that defendant received notice of his right to arbitrate and did not timely request arbitration or that the dispute was not covered by the New York State Fee Dispute Resolution Program, Part 137 of the Rules of the Chief Administrator ( see 22 NYCRR 137.6 [b]). Nevertheless, when defendant interposed his counterclaims, the dispute fell into one of the categories which render Part 137 inapplicable ( see 22 NYCRR 137.1 [b]). Defendant was not required to interpose his counterclaims in order to avoid the risk of later being precluded from asserting said claims. In view of the foregoing, the court below properly determined that defendant would not be prejudiced by the granting of that part of plaintiff's cross motion seeking leave to amend the complaint to allege that "this matter falls within one of the exceptions to 22 NYCRR 137."
Moreover, it is inconsequential that defendant, in his answer, chose not to address plaintiff's failure to comply with the requirements of Part 137 of 22 NYCRR due to his reliance upon erroneous information he received from the Grievance Committee ( see e.g., Matter of Bosco, 141 AD2d 639, 640). In addition, while defendant correctly contends that the court below had the discretion to grant his motion for renewal based upon facts known to him at the time of the original motion provided he offered a reasonable justification for his failure to submit said facts on the original motion ( see CPLR 2221 [e] [3]; see also Spatola v. Tarcher, 293 AD2d 523, 524; Morrison v. Rosenberg, 278 AD2d 392), we find that defendant failed to provide a reasonable justification for his failure to do so since a misunderstanding of the law, and an alleged reliance on erroneous legal advice, is not a reasonable excuse ( see e.g., Matter of Bosco, 141 AD2d at 640, supra). Furthermore, under the circumstances herein, the court below providently exercised its discretion in denying that part of defendant's motion seeking sanctions pursuant to 22 NYCRR 130-1. Defendant's remaining contentions lack merit. Accordingly, we affirm the order of the court below insofar as it adhered to its prior determination denying defendant's motion for summary judgment and granting that part of plaintiff's cross motion seeking leave to file an amended complaint.